This is a revision corrected to link to publicly available sources. For Eben’s comments, see the previous version.

On Creative Lawyering

Introduction

As Eben’s comments suggest, my first draft (which can be accessed under the previous versions of this page) did not adequately express a unifying idea. The central idea in my mind, and the bulk of the paper, involved an attempt at addressing on of the central questions of our class, “What is a creative lawyer?” I attempted to answer the question by looking to two opinions by Benjamin Cardozo, whose work I have enjoyed immensely in my nascent law school career. In my second draft below, I will focus on this aspect of my paper and cut the rest. Since the comments on my first draft raise serious questions about the argument I was attempting to make, this draft will necessarily be both a salvage job and a response to those comments.

A shorter version of my initial discussion of the opinions is below, followed by my response to the comments. While I overreached in my first draft, I still consider Hynes v. New York Central Railroad Co. worthy of close reading for the aspiring creative lawyer.

Hynes v. New York Central Railroad Co.

One of the first cases I read at law school, Hynes v. New York Central Railroad Co., has always stayed with me. A young man is electrocuted while standing on an improvised diving board extending over the Harlem River. The board is planted in the ground on the shore, which is owned by the railroad.

Cardozo explains that one interpretation of the law would treat the boy as a trespasser and deny his mother any recovery. He tells us that “the conclusion is defended with much subtlety of reasoning.” He then tells us that “Rights and duties in systems of living law are not built upon such quicksands,” Citing “considerations of analogy, of convenience, of policy, and of justice,” Cardozo lays down the law and holds the railroad liable.

Jacob & Youngs v. Kent

Another Cardozo case, this one from my contracts course, Jacob & Youngs v. Kent, strikes me as similar in its approach. A construction contract stated that “all wrought iron pipe must be well galvanized, lap welded pipe of the grade known as ‘standard pipe’ of a Reading manufacture.” Mr. Kent refused to pay his contractor for the work when he learned that the pipes in his building were made by another company, though identical in quality.

Kent argued that he was entitled to the cost of completion—the expense of tearing out all the pipes in the building and replacing them. Cardozo, however, held that he was only entitled to the difference in value between his pipes and Reading brand pipes—that is, nothing.

According to Cardozo, “Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and the probable,” and “that an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture.” By denying cost of completion damages, Cardozo held:

1. When contracting with an insane person, the promisor does not have to read his mind.
2. When literal application of the contract will lead to absurdity, throw it out.

Conceding Kent

In my first draft, I argued that in both cases, if the Court had applied the literal letter of the law, the result would have been unjust. Eben’s argues that it is naive to expect that a court would ordinarily order the destruction of the house in a situation like Kent, and I must concede that he is correct.

Prior to writing my first draft, I had encountered cases where courts did order wasteful destruction of property while rigidly enforcing either the terms of a contract or a property right. In American Standard, Inc. v. Schectman (scroll down for case), a court awarded $110,500 as cost-of-completion damages to restore a plot of land to its earlier condition, though the unfinished work would have added only $3000 in value to the property. The court also cites Kent and treats it as inapplicable.

Similarly, in Pile v. Pedrick (see page 23), a court ordered the destruction of a wall whose underground foundation intruded upon between one and one half and one and five eighths of an inch of a neighboring property. However, I should have recognized that these cases are the outliers, not Kent.

Defending Hynes

Hynes, however, still strikes me as an important case, though more for its style than its substance. I do not mean to suggest that what Hynes does is independent from attractive nuisance doctrine. A court encountering a similar fact pattern after Hynes could read the case as adopting a broad attractive nuisance doctrine in practice, without using those particular words. Hynes really seems to be a sweeping endorsement of attractive nuisance without applying the formal label. What makes the case important is that it applies the doctrine aggressively, and that it does so in terms relating to the rights of the boy in a just legal system, rather than the formal rights and duties of a property owner. The style became substantive.

Undeniably, much of the appeal of Hynes is in the boldness of its prose. I read Hynes in Legal Methods after a series of formalistic tort cases denying recovery to mangled or dead plaintiffs and their families. The invocation of “rights and duties in systems of living law” sounded like a voice from the desert.

Perhaps Cardozo was more of a creative writer than a creative lawyer.

Nonetheless, he did justice in Hynes, just as Holmes did injustice, in equally dramatic fashion, a year later with similar facts in United Zinc & Chemical Company v. Britt. Cardozo got the case right, and he did it in style. I still maintain that this is a display of the nerve and talent that I hope to develop.